Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Brazil, (Decided December 26, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that the "uncertainty of measurement" of the Data Master Breath testing machine is not a sufficient basis to reverse a criminal conviction for Third Degree DWI even where the reported test result is a .16.  This is a very bad case for the defense.

In Brazil, the Defendant consented to a breath test, and the DMT device measured and reported appellant's alcohol concentration as 0.16. The Defendant was charged with two counts of third-degree DWI with reference to the aggravating factor of an alcohol concentration of 0.16. The Defendant waived his right to a jury trial, and admitted under oath that he drank enough alcohol to affect his ability to safely drive a motor vehicle before he drove and crashed his car into a parked car. He also admitted that his alcohol concentration was 0.08 or more as measured within two hours of driving. The Defendant denied that his alcohol concentration was 0.16 or more, an element necessary to the gross-misdemeanor charges.

The state presented testimony from Karin Kierzek, a forensic scientist with the Minnesota Bureau of Criminal Apprehension (BCA). Kierzek testified that every DMT device in use in Minnesota comes to the BCA's lab annually for maintenance checks, calibration, and certification. All machines must provide results within the acceptable 0.003 or 3% margin of error in order to pass calibration. Kierzek also testified that DMT devices have a number of internal and external checks to ensure accuracy. These checks begin with having a trained operator administer the test. The operator observes the subject for at least 15 minutes to verify that the subject is not introducing mouth alcohol by burping, belching, or regurgitating. The DMT device tests itself by running a diagnostic test, which includes using air blanks to clear the sample chamber and ensure that there is no residual alcohol or measurable alcohol in the air surrounding the machine. The subject then provides two breath samples a minimum of three minutes apart to safeguard against measuring mouth alcohol, and a control sample runs between the two breath samples to determine if the instrument is working properly when it evaluates a known alcohol concentration. If the two breath samples from the subject are not comparable, the test results are deemed insufficiently reliable and retesting is suggested.

The DMT results showed that the DMT device used to test appellant's alcohol concentration went through the full sequence of checks and passed all of them. There is no indication of irregularity or malfunction. The air blanks produced readings of zero, meaning that the sample chamber was clear of alcohol. Appellant's first breath sample revealed an alcohol concentration of 0.164. The machine ran another air blank and a control sample with a target of 0.078, which produced a result of 0.077. Kierzek testified that the control sample reading was only 0.001 different than the known sample, which variance she testified was insignificant and meant that the machine was measuring alcohol accurately within tolerable limits. After the control-sample test, the machine ran another air blank, which again tested zero, and then appellant provided a second breath sample, which resulted in an alcohol concentration measurement of 0.175. One final air blank was run to clear the sample chamber and check the room air for any measurable alcohol. It also tested zero. Kierzek testified that appellant's final alcohol concentration was determined by taking the lower of the two reported sample results, 0.164, and dropping the third digit to reach a reported value of 0.16. This method of reporting "give[s] the most benefit to the subject," according to Kierzek's testimony. Based on her review, Kierzek opined that appellant's breath-test results were accurate.

Kierzek also testified that "[t]here is no perfect measurement" and no measurement can ever be absolutely accurate. She testified that there is an uncertainty-of-measurement range within which the tester could have confidence that a high percentage of results would fall. Factors that contribute to the uncertainty of measurement include the area in which the tests are performed, the instructions given by an operator, whether the subject is wearing cologne, and whether the subject has certain medical conditions. She testified that the uncertainty-of-measurement value "merely gives you a range of what you would expect to see given repeated samplings." For appellant's test in particular, Kierzek testified that, at the 99% confidence interval, the expected range of test results would be 0.1504 to 0.1886. The average from appellant's two breath-test results was 0.1695, and Kierzek testified that this is the "most likely result," and that repeated test results "would be symmetric around that point." She also agreed that, had appellant's breath been tested a third time, it could have fallen anywhere within the confidence interval that she identified, from 0.1504 to 0.1886, and agreed that a third test falling anywhere within that range is "a distinct possibility" that is not arbitrary or capricious. Appellant's counsel asked Kierzek whether she could "say that if [appellant's breath] was measured a third time . . . [the result] would be a .18 or if it would be a .15 ... [w]ithout speculating," to which Kierzek responded no.

The District Court found the Defendant guilty of Third Degree DWI i.e. having an alcohol concentration level of .16 or more and on appeal, the Appellant argued that the evidence was not sufficient, because the uncertainty-of-measurement range includes values below 0.16, meaning that some tests of appellant's breath—if enough were done—would be expected to fall below 0.16.

The problem with the Appellant's argument is that once a person has been convicted, the Appellate Court will invoke the rules designed to affirm the factual findings of the District Court. Or, as stated by the Minnesota Court of Appeals in this case:

"In considering the sufficiency of the evidence supporting a conviction, we thoroughly analyze the record "to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [factfinder] to reach the verdict which [it] did."

"We must assume that the factfinder 'believed the state's witnesses and disbelieved any evidence to the contrary.' State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 'We will not disturb the verdict if the [factfinder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that" the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). We have referred to this as the "traditional standard of review.'

"The record contains no measurement of appellant's alcohol concentration lower than 0.16. While appellant argues that the state is required to prove his alcohol concentration within the uncertainty-of-measurement range, our case law has consistently rejected this argument when framed in terms of margin of error." ***

"While these earlier decisions were made in the context of implied-consent cases, they hold that the proponent of a breath test need not prove the measurement to have been absolutely and precisely correct. The proponent must show that 'the necessary steps have been taken to ensure reliability," and after that 'it is incumbent on the driver to suggest a reason why the [breath] test was untrustworthy'".

"The district court accepted the test result as adequate proof of appellant's alcohol concentration. It did so despite testimony that it is possible that a third test of appellant's breath might have revealed a reported result under 0.16. The record supports the district court's factual finding concerning appellant's alcohol concentration. The evidence is sufficient to support appellant's conviction of third-degree DWI."

The Court's opinion in this case is troublesome as it transfers the rejection of the "margin of error" argument in civil cases and applies it to a criminal case.  In a civil case, the burden of proof is just the "preponderance of the evidence" or "more likely than not" standard.  So the fact that a machine has a "margin of error" is not very important where you are just trying to decide if it is more likely than not that the subject was over the legal limit.

But in a criminal case, where the burden of proof is "beyond a reasonable doubt" then the uncertainty of measurement should apply to prohibit a conviction where it is known that the machine, testing the same sample repeatedly, is likely to give a result under the legal limit.

Moral Of The Story: Never waive your right to a jury trial!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Rice (Decided December 18, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if the district court makes a factual finding of "good faith", the Court of Appeals will not overturn the lower court's ruling.

In Rice, the Defendant was stopped for speeding in Olmsted County and was subsequently arrested for DWI.  After reading the Minnesota Implied Consent Advisory, the Defendant told the trooper that he wanted to call an attorney prior to testing. The trooper provided the Defendant with a telephone and directories.

The Defendant told the trooper he would not be able to read the directories without glasses. The trooper made two efforts to find reading glasses or a magnifying glass for respondent, but his efforts were unsuccessful. The trooper also suggested that respondent telephone a friend or family member to assist him in contacting an attorney, but respondent declined to do this and said the trooper or another officer should get the glasses that respondent had in his car and bring them to the detention center.   The trooper replied that neither he nor another officer could leave the detention center to go to respondent's car for his glasses.

The Defendant had difficulty recalling the name of the attorney he wanted to call and whose number he wanted. He specifically asked the trooper, "Would you look the number up for me?" The trooper answered, "No sir, I'm not gonna look up a number for you." The Defendant did not take a breath test.

Following a contested omnibus hearing, the district court concluded that the Defendant had not been allowed to vindicate his right to counsel prior to taking a breath test and granted his motions to suppress the evidence of his exchange with the trooper during the implied-consent advisory and to dismiss the test-refusal charge.

The State appealed the district court's ruling but the Minnesota Court of Appeals agreed with the district court, stating:

"An individual who invokes his right to counsel before taking a breath test "must make a good faith and sincere effort to reach an attorney." Kuhn v. Comm 'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Whether a good faith and sincere effort was made is a factual determination that this court reviews for clear error."

"The district court determined that respondent 'made a good faith effort to contact an attorney' because he repeatedly asked for reading glasses or a magnifying glass so he could read the directories. We agree with the district court that the trooper had no obligation to retrieve respondent's reading glasses from his car or to send another officer to do so, and we note that detention centers have no obligation to provide reading glasses in order to satisfy a driver's right to contact an attorney."

"The district court went on to conclude that the trooper 'could have easily assisted [respondent] in vindicating his right to counsel by looking in the phone book and providing [respondent] with the phone number of the attorney [respondent] requested.' Because respondent did not identify the attorney whose phone number he wanted, the trooper should have asked him for the attorney's name. Had the trooper done so, respondent would have either identified an attorney, whose number the state trooper could have looked up, or have been unable to identify an attorney, and, in that case, the state trooper would have had neither the ability nor the obligation to look up a number. While an officer has no obligation to read a driver all or any part of the list of attorneys provided in a directory, there is an obligation under to assist a driver who is unable to read the directory by asking if there is a specific attorney whom the driver wants to call and, if possible, providing the number of that attorney."

Moral Of The Story:  If you have been arrested for a DWI, always ask to speak to an attorney prior to testing!

If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your Minnesota DWI and DUI questions.

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Dettmann, which stands for the proposition that the police cannot do an inventory search of a motor vehicle where their primary motivation for the search is the investigation of a crime.

In Dettmann, state trooper Brett Westbrook was patrolling in Pine City, Minnesota and observed a gray vehicle make a quick lane change and move into a parking space in front of the old courthouse. Westbrook ran the vehicle's Wisconsin license plate and learned that the plate was for a Chevy Lumina with suspended registration. However, the gray vehicle Westbrook observed was a Pontiac Bonneville, not a Lumina, prompting Westbrook to pull off the road and wait for the vehicle to drive by him again. A few minutes later, the vehicle drove by and Westbrook followed it. While following the vehicle, Westbrook observed it straddle two lanes of traffic before making a left hand turn. Westbrook activated his lights and siren, and the vehicle drove into a bank parking lot and parked diagonally in the back lot where vehicles are rarely parked.

Westbrook approached the vehicle, and the driver identified himself as appellant Anthony A. Dettmann. Because the license plate on the vehicle was registered to a different vehicle, Westbrook performed a registration check on both the vehicle identification number and the license plate. The vehicle was most recently registered in Minnesota in 2013, to someone other than Dettmann, and there was no stolen vehicle report. Dettmann told Westbrook that he was having trouble transferring the title to the vehicle, and that he had exchanged the license plates from his old vehicle to this vehicle so that he could drive it on the highways. In Wisconsin, as Westbrook later testified, license plates do not follow a vehicle, they follow the owner of the vehicle.

When Westbrook asked for proof of insurance, Dettmann responded that he was unable to provide proof of insurance. Also, when asked for proof of purchase of the vehicle, Dettmann responded that he did not have any paperwork or documentation with him or in the vehicle.   Westbrook was prepared to issue Dettmann citations for driving without a valid driver's license and illegal use of license plates, but had decided not to arrest Dettmann.

Because it was almost 4:30 p.m. and the bank was about to close, Dettmann asked Westbrook if he could go into the bank and cash a check, and Westbrook agreed. While Dettmann was in the bank, Westbrook decided to tow the vehicle because ownership of the vehicle had not been established. Westbrook did not discuss his intention to tow or search the vehicle with Dettmann. After calling for the tow, Westbrook began an inventory search of the vehicle to document items of value. On the front passenger seat, Westbrook discovered a small pouch containing a white crystalline material that later tested positive for 0.063 grams of methamphetamine. He also found a glass pipe in the center console. Westbrook drove his squad car to the bank entrance, and placed Dettmann under arrest when he exited the bank.

Dettmann filed a motion to suppress the drugs, which was denied by the district court.  On appeal, the Minnesota Court of Appeals reversed the district court, noting:

"Inventory searches and "inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger,' and 'are considered reasonable because of their administrative and caretaking functions.'(citation omitted).  The traditional requirements of a warrant and probable cause are not implicated when police undertake administrative and caretaking functions precisely because such functions are unrelated to criminal investigations."

"However, because an inventory search only occurs after police have taken custody of a piece of property, an inventory search is only reasonable if taking custody of the property was reasonable."

"Two requirements must be met for an impoundment to comply with the Fourth Amendment. First, an impoundment is reasonable only if the state has an interest in impoundment that outweighs the individual's Fourth Amendment right to be free of unreasonable searches and seizures." (citation omitted). The state's interest in impounding an individual's vehicle can outweigh an individual's right when 'public safety is put at risk by leaving the vehicle in place,' or when impoundment is necessary to protect the property from 'unauthorized interference' and protect police from claims related to leaving the property unattended, such as theft."

"The state concedes that the trooper did not have probable cause to believe that Dettmann's vehicle was stolen and that the "vehicle was not impeding traffic or threatening public safety." The state also makes no assertion that, prior to the seizure of Dettmann's vehicle, Dettmann was incapacitated or under arrest. Instead, the state argues that the impoundment of Dettmann's vehicle was proper based on police caretaking authority to protect the owner's property. "This authority arises 'when it becomes essential for [the police] to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger.' Rohde, 852 N.W.2d at 265."

The Minnesota Court of Appeals then correctly held:

"The district court erred because the driver and owner of the vehicle was present and had capacity to take responsibility for the vehicle. When a driver is arrested, police often will need to do something with the vehicle so it is not left unattended for an indeterminate amount of time. Id. at 266. But 'cases in which the driver of a vehicle is arrested are fundamentally different from cases in which the driver remains free.' Id. (emphasis added). When the driver is free, the driver remains responsible for the vehicle, and police have 'no interest in protecting the property from theft or other claims arising from police control of the vehicle.'"

" [T]he the state argues that it could not release the vehicle to Dettmann because he could not prove that he owned the vehicle, and therefore Westbrook was taking responsibility for the vehicle to prevent theft. But, the question is not whether the state can release the vehicle to Dettmann, but whether it had authority to seize it from him in the first place. Because Dettmann claimed he owned the vehicle, the only way the state could believe ownership of the vehicle was in question was by determining that Dettmann's possession of the vehicle was a crime, which places the seizure outside of a community caretaking function and into the realm of criminal investigation—requiring probable cause."

"The state cannot impound and conduct an inventory search of a vehicle where the state's only motive is criminal investigation, and here the state's only motive was investigating whether Dettmann's possession of this vehicle was a crime...The State concedes there was not probable cause to impound the vehicle and on this basis, the impoundment violated the Fourth Amendment."

Moral Of The Story:  If you are not arrested they cannot search your car. 

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.